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    30035

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    Chachamaru Rin

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    CONTRACTS RELATING TO MARRIAGE PART It Part I of this paper dealt with marriage brocage agreements." In this part of the paper, two other aspects of agreements relating to marriage will be considered: agreements in restraint of marriage and agreements made by married persons to marry another person, As pointed out earlier, the common feature of the agreements under study is that they are rendered void under ‘the common law as being opposed to public policy. AGHDEMENTS IY RESTRAINT OF MARRIAGE, ‘An agreement in restraint of marriage is one whereby one party agrees to fetter his freedom to marry. Such a restriction may either be total or partial. An example of an agreement in total restraint will be one where A promises B that he will never marry, wheress an agreement whereby A promises B that he will only marry someone of a patticular class or religion will be a partial restraint, Agreements in total resuraint of marriage are invalid under English law, though an agreement in partial restraint may be upheld if itis reasonable? Section 27 of the Contracts Act provides: Every agreement in restraint of marviage of any person, other then a minor dusing hs ot hex minority, is oid, Tt appears from the reading of section 27, that every restraint, be it total or partial will be void, Before a detailed study is made of the scope of section 27, it is proposed that a brief account of the historical development of the doctrine of restraint of marriage be given, . ‘Part of This article ws puihed in JMC, Volume 6 Pars “(19r9yanc 308, *cizty on Contract General Principles 197 (24th cB), pate 958, 2 Jernal Undeng Badong 1980) ‘The wue basis of the doctrine of restraint of marriage seems to be unclear. The reason most commonly attributed is that such agreements are against publie policy ewill not be questioned that marviages of a suitable characze, founded fon the mutual affection of the partes, anil made upon the free choice, ace of the greatest importance to the best interests of soviety, and shoul be by all proper means promoted and encouraged, The purity of the marriage elation and che happiness of he partes will, 0 3 grext extent, depend apon their suitableness the one for the other, and the tentite freedom of choice which has led to their union; and upon these, in cheir tuta, in a great degree muse depend dhe successful rearing of their childsen, and che proper formation and development of their character and principles, Hence, aot only should all posiive prohibitions be rendered rugatory, bur all unjust and improper restrictions upon it should be removed, and all undue influence in determining the choice ofthe partes be carefully suppressed.” Though similar views have been expressed by other courts, none of them have spelt out the exact aspect of public policy which such agreements offend, The origin of the rule under English law is uncertain, The courts from the earliest cases have based their decisions on the sole ground of public policy: it is against morality and against the interest of socicty but they have not spelt out just what public or social interests are injured by restraints on marriage. It seems to based on an unarticulated belief that marriages ought to be free and not prohibited by private persons.* They have not explored the true basis of the rule in any other light, In fact, it has been suggested that the true basis is not merely one of public policy but an ancient rule ‘of Roman taw: + the objection to she restrain of (marriage), was a mere political ‘egulation applicable to the circumstances of the Roman Empire at addon v Maldon (4854) 11 Gra (V9 808, “1g has bes a thatthe vason for she rule inalidtingesteant on marines fa he universal ele that matings the prope nay of fe nad mst be easouraged o¢ in the aged forthe wtnot,fresdonm of choices contacting martsge, or eae inch a policy prowotes oalty, preumably by removing the tempation t0 sabe Stace hie cahabieaton for lawl marigs, Jct, Contracts Relating To Marriage hac time and inapplicable to other countries. After the enil war, the ‘Gepopulation occasioned by i led to habits of eelibucy. In the cme of “Ruugutus, te Julan In, hich went too fa, and was cocrected by the “Les Papia Poppoeu, not only offered encouragement to marrisge, but [aid Reavy impositions upon celibacy. That being established ay a cule in restraint of celibacy and for the encouragement of al} pesons who (ould conteset marriages, it nezessuily followed, that to person could) get contrary t it by imposing restraints directly contrary t0 the law. ‘Therefore it became a rule of consicuction, that these conditions were vill Tr appears that this rule of Roman law was adopted by the “early English judges of the ecclesiastical courts without ‘considering its desirability. The Common law judges in turn ‘merely resorted to the concept of public policy to account for its adoption. It has since been the basis of the rule.* “The basis for the more stringent rule under section 27 of the Contracts Act is unclear. What was the rationale for declaring every restraint, whether total or partial, to be void under section 27. Section 27 of the Contracts Act was again borrowed from section 26 of the Indian Contract Act, which in turn was. taken from Dudley Pield’s Draft Civil Code of the State of New York,’ Field in his explanatory note to section 836 of the Code dealing with restraint of marriage states that contract in general restrine of mariage are certainly vod. eghaps a contract simply in restrain of remarriage of the wite of one Per Lond Loughborough in Stackpole w Restos (1796) 3 Ves. Jt 89, 39 ER. 200, “5c genrilly Anatetion, 122 ALR. {Daft of cio Cote Proposed by Comminsiones of Code, 8 ol. Abs |, howerer a slghedifesence In phrsedogy berseen the Malaya provision and that of th Indian Contract Acs an FN Code, Both the Field Code and tie taian CConerace ack prone thr “every contact im zstetine ofthe mariage of any person, ‘ther than ean is wad (Seetlon 25 ofthe ina Contact Act and Clause 836 of the Field Code) It would sppeae, Dower. chat wieo the tedian Cantrac Ac as extended co Malaysia, the drafters ad ken into consideration the criticism of \isey Stokes in his Commentaries on tke Angi lian Cade «Stokes, Ang inden Code Vel 1 Of Section 26 ofthe Indian Contest Act, Stk had commented that "a the secu is worded, am gicemene in feet of Ae mariage a ay time would ‘vad A weve s minor ae the dite ofthe agtcmnemt, He then sgposied that che hue,» ding fk or her minority” (at page 36, footnote 4) beaded to dhe ‘Seton. fc would appear thar benute of hs Soret, i phage, ring is or Jere! Unseng Undang 1980) bf the parties was 10 be valid in analogy to the rule concerning will Duc experience has shown thar such stipalation led to immorality? This explanatory note adds lite to the uncertainty sur rounding the intention of section 27, There é also much doubt as to the reason for the incorporation of the Fiek! Code into the Indian Contract Act and the Malaysian Contracts Act. In fact, an extensive survey of the legislative history of these two sections reveals very little concerning the need for such a rule to be introduced into India and Malaysia, Like most other provisions of the Contracts Act, the drafters had ‘merely taken a piece here and a piece there’ in drafting the Act. If one considers that agreements in total restraints were generally not prevalent in India or Malaysia or that it was not a common practice of the different communities in these two coumtries co enter into agreements to restraint another from marrying, it will he clear that section 27 was not intended to overcome any undesirable practice, A detailed study of the section will indicate that the application of the section is not wholly without difficulty, Score oF suctioN 27 Section 27 a5 worded renders all agreements in restraint of marriage, whether total or partial void. In fact, under section 27 aot only is the term in restraint of marriage becomes void but also the whole agreement is rendered void as well, This is unlike the position under section 28 relating to restraint of trade which merely renders the term in the contract void and not the entire agreement.’ Will the Malaysian courts then interpret ‘er minority’ way added co vction 27 which vas then sent both yd he Fils Draft and winder section 26 of tte Indian Ace. sxzgpe thn for ee afferenc, te Malay. provinion Is salar 0 the Indian Goottact Act and (0 shete of te American States where the Field Code ix appieble (Nord Dakota Cenewrp Code 3-08-02, Calfornien Ciel Code, Seton 1676, Ollsboms Stories, Vite 2415, *Atpage 256, {Section 28 reals "Every agreement by which anyone ie etiined trom emerelig » lawl protesion, wade, «i 0 that extent void Cenphis aded). Jvc Contracts Relating Vo Meriage seetion 27 to give it a very strict interpretation or would they interpret the section in a more liberal manner. ..?There has been no reported case on the interpretation of section 27. However, this is no indication that such clauses are not in use ‘As discussed below, such clauses are commonly inserted in contracts of employment of waitress, bus conductresses, and ‘cinema usherettes, It is also common co find such clauses in scholarship agreements, There have, however been a number of cases concerning contracts of employments which have been decided by the Industrial Coure'* with reference to section 27 of the Contracts Act!" It may be pointed out at this stage that in contracts of employments entered into by women, there is often a term inserted in the contract which provides that the employment will be terminated whenever the female employee marries. The Industrial Court in the cases discussed below considered the validity of such clauses. In Shaw Brothers (Penang) Limited v. Kesatuan Kebangsaan Pekerja Wayang Cambar dant Taman Hibvuran Etc,,'* one of the catliest cases to be decided by the Industrial Court, the Court had to decide whether a clause in a contact of employmenc centered into by a cinema usherette with the company which provided: | farther agree to temminate my services in the event of my yerting married, was void under the then section 27 of the Contracts (Malay States) Ordinance.?? The Industrial Court held: ‘The condition ss to mastiage . . . cannor in the view of the Court be said so be in sesttint oF martiage, There is no prohibition against marviage. In effect ic is an undertaking given that event of her matrage, she would leave the service ofthe Company.'* "toe Industral Cour iter op under the Industral Relatons Act As co the povton of sestisat of mertiegs in employment contracts inthe United States se 52 At, Jus 24, pura 174 aad the casts led therein, **UnaatentCoure Cate Number 25 of 1967. Aware Number 17258, "Now Comme Act bid a page 5. devout Undang-Undong (1980) ‘The Court next considered whether the condition was ‘repugnant to the basic right of the individual and inequitable’, ‘The learned Presidene then came to the conclusion hat: ‘The Court is in agreement with the Counsel for the Company when he incimated that it was essential Uae usheretees, icket collectors and sellers should at all times have a trim and meac appearance and that there were disadvantages, inter clis, assoclared with pregnancy and mociternood if marcied women were employed or if women employees ‘were permitted to continue inservice when married. ‘The Coutt is therefore of the view that the condition as to mariage is legitimate in relation to the class of employees affected, and therefore ‘eannot in that sense be described as repugnant to the basic right of the individual.!* There are three decisions of the Industrial Coure where agreements entered into by bus conductresses which provided that they ageee to retire on marriage were considered, In Syarikat Kenderaan Borsatu Sdn, Bhd, v. Transport Workers Union, Federation of Malaya,’* the relevant condition of ‘employment reed: “The employce hereby agrecs to retire when she gets matted, ‘Tan Sci Maclntyre, the President of the Industrial Court held that: ‘We think that the provision of section 27 of our Contescts Ordinance | is wide enough 10 cover a direct or indirect intention to restrain ‘marriage, Tae marriage fetitement clause as such is void in law and therefore enforceable." Having held the clause to be void, the President proceeded tohold, lis obvious, however, that the intention behind the clause was nor 10 interfere with the right of marriage but co restcict the employment of rmarrigd women as bus conductresses because of extraordinary Matpage 6. agdustat Coun Cave Number 29 9f 1972, Awatd Nasmber 30/72. ge page 9. JMC. problems result ExPOEEE. pregnancy and i Hkely to involve frequent absence on medical leave fefore entlement to maternity leave. The situation css upon the employer additional financial burden of employing subsinutes in order {0 imaintain the operational efficiency of the service. We ae satisfied that in the cise oF bus eonduetesses, an agreement to estiet the employment of pregnant women i neither opposed to public policy nor offends against eh principles of social justice! ® ‘A similar approach was taken by the Industrial Coure in Ipob Internal Transport Service Company Sdn, Bhd, v. Puan Puspaganda and Puan Chew Ab Lek.'® The clause in the contract of employment provided that: Female employees shall sucomatially cease to be employed when they macy. ‘The Court held that such @ clause was in restraint of marriage and was void and unenforceable as being against public policy and in contravention of section 27 of the Contracts Ordinance, The Court held: Section 27 is. ide enough to cover a direct or inditeet intention 60 resrain marviage"° Me, Abraham, finding of the court in Shaw Brothers on the interpretation of section 27, He then adopted the reasoning of the learned President in Syarikat Kenderaan Bersatw and arrived at the following conclusion: ‘After carefully considering the submissions and the evidence aforesaid, ‘he Coutt has come to the conclusion the hazards are such that it ‘would not be conducive for pregnant women 0 continue working 3s bus conductresses. 1¢ would be a disadvantage both ¢0 the public and ‘to themselves, The Company would be put c0 additional expense in ‘eraplaying relief and raining therm, The Court, thetefore, finds that “tacpage9. "tnduseiat Cour Cate Nanoe 43 of 1972, Award Number $4772, Macpage Contracts Relating To Menage {vom pregnancy. The nature of tre work involved nen to hazards not conducive co successful the Chairman said that he disagreed with the Jernol Uridang Undang {1980} the real easons of the Company i terminating the servives... were as | above and not to restrain marrage.*! | It is difficult to appreciate the reasoning of the Court in these two cases. Having held the clauses to be void under section 27 of the Contracts Ordinance, the Court after considering the evidence held that the reasons for terminating the employment was justifiable and as such the agreement was neither “opposed to public policy nor offends against principles ‘of social justice’, fa clause in an agreement is void under the law, it cannot be enforced no matter how reasonable the clause may be, How then did the Gourt in these wo cases give effect to the clauses in question? In the third case dealing with agreements entered into by bus conductresses, the Industrial Court in Transport Workers Union ¥. Ipob Internal Service Company Sdn, Bbd.?? held: No woman should feel herseli out of place in modern society by ‘remaining ancmployed beceuse of performing her biologieal function of childbirth, The Court, as a Court of good conscience, resents any prejudice persisting againse women in the employment market because fof pregnancy, Pregnancy is 2 natural event and na employer would want a woman to abort pregnaney just (o remain in employment, Ii lime that employers realise char social attitudes have changed soday to accept sexual equality in employment asa fact, without unnecessary i restrietions imposed on Women, Such an attitude as to deny = woman, ] comsinued employment after pregnancy or chilbieth it mo doubt socially incorrect’ or ‘unjust’, bordering on sex discrimination 2? The Coure therefore held that the termination of the ‘employment wrongful and ordered reinstatement, In Hotel Merlin (K-L.) Sdn. Bed. v, National Union of Hotel, Bar and Restaurant Workers,** the clause in the contract of employment entered into by female employees which provided, the event of marrage, you shal resign from you post automati- ally, Macpages, __!taductria Court Case Numbor 1690 1977, Awad Number 181778, Marpages, "tadosal Court Cave Number 24 of 1978, Awatd Number 48/73, get. Contrsets Relating To Marriage was considered, ‘The Industrial Court, relying on earlier Gecisions, and without any teference to scction 27 of the Conteacts Act held, Ie is cleat from the above eases that an employer may be justified in imposing a condition of resignation upon pregnancy in these eases intire it would be hazardous for pregnant women to continue working Dr where the nature of the work would preclude such women, te would be necessary, therefore, t examine each category of female workers. ‘The Court then held that in certain types of jobs like that performed by waiteesses and receptionists the restraint was justifiable, It is therefore clear from these cases that the attitude of the Industrial Court towards such clauses is not consistent. In Shaw Brothers it was held that the clause was not in restraint of marriage. In Syarikat Kenderaan and in Ipob Internal Transport, the Court held that though the clauses were void under section 27 of the Contracts Act, they could be enforced if they are justifiable, Finally, in Transport Workers Union, the Court held the clause to be void. It is submitted that these conflicting decisions of the Industrial Court is the result of the Courts failure to address itself fully to section 27 of the Contracts Act: The Court appears to have directed its mind to the main issue as to whether the female employees were rightly dismissed under the relevant clauses, Except in Transport Workers Union, the Court in the other four cases merely considered whether a married employee was suitable to perform a particular job, The Court did not enter into any detailed legal arguments as to the validity and effects of such clauses. The effect of these decisions is that female employees working as usherettes, bus conduc tresses, waitresses or receptionists are unsuitable to perform these jobs whilst they are pregnant. The employers could there- fore terminate theit services if there was such a clause in the contract of employment, Though the Gourt in the Hose! Merlin case did say that Undang-Undang 1980) «it is rime that a more enlightened view be taken of married women who are wotking, They form a considerable proportion of labour at present and the benefits of 2 continuous cireer should nat he denied hem upon marviage, Even upon pregnancy, the management should use ios discrecion ia favour of such woment unless there ate com pelling reasons why they should not continue to catty on working, this advice had not been heeded by most employers, In most cases, employers would prefer to terminate the services of the female workers so as to avoid granting them maternity leave or maternity pay.” Whether such 2 practice by the employer is proper and whether it should be discouraged is not within the purview of this paper. This paper only deals with the issue whether such clauses are in restraint of matriage under section 27. The important decision for this purpose is the Sha Brothers ease where it was held that such clauses were not in restraint of marriage, This view has been criticised by CLP. Mills in his book on fndustrial Disputes Law in Malaysia: ‘This part of the decision plainly proceeds on a wrong basis, for the Gourt misled itselT by parapitrasing ‘restaint’ in tert of “Prohibition” there could hardly be any clearer contractual restraint on satiage than the term of the comtract under consideration in this case.2* ‘This criticism was approved by the Industrial Court in Syarikat Kenderaan and Ipob Transport. Wc is submitted that if the view of Mills is cortect, then it will necessarily lead to certain harsh consequences. If the agreement is held to be in restraint of matriage under section 27 of the Contracts Act, then the entire contract will be void, In other words, the entire contract of employment will be void and therefore the employer may refuse to employ the employee. Being a void contract, the employee may also lose some of the benefits which she may be entitled to under the contract of employ: ment, for example, wages, bonus, accured annual leave, *Acpage 37, ¥Sce provisions relating wo eternity ewe and maternity pay vader the Employ ‘ent Ordioance 1955, Se also views expremed in Award 11/78 Pac page 156, ach Com eracts Reta Morriage u maternity leave, housing ete, Surely such a consequence is most undesirable as it will affect the employee adversely. Tearing in mind the adverse consequence discussed above, it is submitted that section 27 should be interpreted cautiously, It is the writer’s view that the section only applies to agreements which restrain a person from marrying and does not apply to agreements which merely deter a person from marrying. A typical case of a contract in restraint of marriage is one whereby the effect of the agreement is to promote celibacy, Further more, an agreement in restraint of marriage also imposes financial liability on the patty undertaking not to marry, In Lowe v, Peets,?® the Defendant agreed sot to mary with any person besides Mrs. C.L.: if To, L agree to pay the said C1. £1,000 within chree months next after T shall marry anybody ese. In Baker v, White,?° a widow promised to pay £100 if she remarried, whereas in Hartley v, Rice,®" the plaintiff promised to pay 50 guineas if he maried within six months. It is ‘agreements like these which the English courts have held to be in restraint of marriage. On the other hand, a contract which merely deters or discourages someone from marrying and does not impose a penalty but only provides that a particular telationship or arrangement will cease on marriage is not & restraint? The agreement itself does not prohibit che party from marrying. The agreement bestows certain benefits which the party may enjoy on condition she remains unmarried, for example, a promise to pay £100 so long as you remain single, or *¥ 14770) 4 Bore 225, (1690) 2 Veen, 205,23 FR, 740, 10s ER, 683, 2 The supreme Court of Wester Austen he ease of Mivster for Education ¥. Onell (19661 WoacR. 39 Pel eat o cause i» Texcher Teng Scholarship which provided that the sudene should pot marry rng the coue ofthe aang was Pat Je reoualne of marrage on the ground thet was nox unresomble, The court said oT thowe nothing agaltst publie policy i this, probebly she reverse be etre. ir would no doube more often than nat be for the benefit of the com: sunley iaar'a maried worn should be tree co deve herself co her erdinary domestic dunes and ro abe beng up her faily rather than che shouldbe offered ‘ny partcuar inducement vo eapage in (ll Eze employment Jersal Undang-tndang (19K) to lec a house to a person until marriage, Likewise, a contract of employment which provides that one may be employed so long as one remains unmarried is also not in restraint of marriage.?? In all these examples, though the party is deterred from marrying, no contractual liability arises upon his marriage. He may, therefore elect to terminate the special arrangement without any liability by contracting a marriage. The special arrangement will merely cease to exist, for example the contract of employment will be terminated. Support for this view can be found in the leading commentary on the Indian Contract Act by Cunningham and Shepherd: ss-When instead of & promise not ro many any person or during a particular period, abstention fro: mariage constitates a condition of which some Benefit may be enjoyed, ic may be doubted whether the section would apply. If A undertakes to pay an annuity C0 B from _lven date provided that she shall not have married oF until she shell Imacey, the effect of the transaction may be to deter B from marrying. But in such 2 transaction 20 promise to marry is involved: there is a ‘condition and the section has nothing to say in vegard to the validity ‘ef conditions.>* In the Indian case of Rao Rant v. Gulan Rani,?* the Court in interpreting a clause in an agreement witich provided that a widow would be disentitled to certain funds on her remarriage held that such a clause was not in restraint of marriage: All that was provided was that if s widow elected to romarry, she would be deprived of her rights given to her by the comproinise In other words, no direct prohibition to rematry war imposed by the ‘compromise. It i Further submitted that this interpretation is consonant ‘with the tenor of section 27. Section 27 envisages an agreement, khough ete i some is pearly ld dae anaseemenc noo snrty which ‘ctely incident ca ethene vai and tesonatle contact Fr prsral sores ‘doesnot rader ee contract legal and ve" **Ca915) U1eh ed, 141, See ato views expreed by Teelsl Toe Lew of Gonrsce Sh Ba, page 328, PFALR 1942 A 351, ave. Contnacts Relasing To Marrisge the entire subject matter of which is a restraint on the right to tarry or an agreement which has as its truc object an intention to restrain a party from marrying, The District Court of California inthe case of Heaps v. Toy?® held that an agreement between a divorced woman and married man whereby The woman agreed. co forego merying any other person, ani to accept employment a8 a companion co the man, and w maintain a home for him and at which she woutd remain that he would purchase ‘howe for her, fuenish it and pay caxes and insurance om it, end fsuppore her far the temaindes of her life and provide in his will for hee lifelong care, ‘was an agreement in restraint of marriage, The Court observed that Section 1676 of the Civil Code declares. “every contact im ratraint of the manage of any petton, other than 4 in, fs old,” Here under the kerms of the agreement os pleaded it was ated that in consideration ofthe promiscs mad by deeadant to plaintiff she would not marry during the remainder of her life, or at least at eny time prior c the texmination of the agreement by the

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